Egypt: Fix Draft Constitution to Protect Key Rights

The Egyptian Constituent Assembly should amend articles in the draft constitution that undermine human rights in post-Mubarak Egypt, Human Rights Watch said today in a letter to members of the Constituent Assembly. The draft provides for some basic political and economic rights but falls far short of international law on women's and children's rights, freedom of religion and expression, and, surprisingly, torture and trafficking, Human Rights Watch said.

"The Constituent Assembly has a landmark opportunity to lay the groundwork for respecting human rights in tomorrow's Egypt, but its current draft fails to meet that standard because of vague language or limitations that destroy the essence of many rights," said Nadim Houry, deputy director of the Middle East and North Africa division at Human Rights Watch. "It is particularly shocking that Egypt's post-Mubarak constitution does not mention the word torture but instead refers only to lesser forms of physical harm."

Human Rights Watch reviewed the September 27, 2012, draft of the constitution and subsequent changes to individual provisions made public on the official Assembly website. There has been a lack of transparency about the timeline of the constitution drafting process but the president of the Assembly, Judge Hossam Gheryany, said that he expected the constitution to be ready by the first half of November. The official website of the constitution shows how each provision was revised during the drafting process and invites online feedback, but local nongovernmental organizations have criticized the public hearing sessions held by the Assembly as cosmetic.

Once the specialized committees have finalized negotiating the drafting of each chapter and approved it at the committee level, the entire document will go to the plenary of the Assembly for vote, where it will be subject to further amendments. As set out in the Constitutional Declaration decreed by President Morsy on August 12, a referendum on the constitution will take place 30 days after the draft constitution is finalized and parliamentary elections will take place two months later.

The draft constitution upholds many key civil, political, social, and economic rights, Human Rights Watch said. Article 47, which prohibits the creation of exceptional courts and the trial of civilians before military courts, is particularly noteworthy. This provision could put an end to the abusive use of military courts to try civilians, a widespread practice during Mubarak and Supreme Council of the Armed Forces eras, and dissolve Egypt's State Security courts.

Provisions That Fall Short
But other key provisions are inconsistent with international human rights standards and would pose a serious threat to the future of human rights in Egypt, Human Rights Watch said.

Article 5 fails to clearly prohibit torture, instead only prohibiting lesser forms of "physical or psychological harm," instead of including the crime of torture and setting out a duty to investigate and prosecute when it occurs. One of the main reasons impunity for torture remains rampant in Egypt is that the penal code does not fully criminalize torture. This makes it difficult to prosecute police for torture that occurred in the Mubarak era. The failure to fully prohibit torture is especially surprising given the fact that anger against police abuse played a central role in the January 2011 uprising, Human Rights Watch said.

Article 36 threatens equality between men and women by saying that the state shall ensure equality between men and women as long as it does not conflict with "the rulings of Islamic Sharia" and goes on to say that the state shall ensure that a woman will "reconcile between her duties toward the family and her work in society." This provision is inconsistent with the provision in the same chapter that prohibits discrimination on the grounds of sex. Discrimination against women under Egyptian law, and in particular in family law, is a longstanding problem, but keeping the reference to "rulings of Sharia" in the new constitution would open the door to further regression in women's rights.

Following pressure from Salafi members of the Assembly, drafters removed wording that prohibited trafficking of women and children and replaced it with the more general prohibition of "violations of women's and children's rights."

On September 19, a leading Nour party Assembly member, Younis Makhyoun, said in a live interview on Tahrir TV that he had pushed for the removal of the provision, contending that "in Egypt there is no trafficking of women and children," that including the provision would "tarnish Egypt's image abroad" and that some international treaties consider early marriage tantamount to human trafficking.

In a later interview Makhyoun said on the live TV program Al Ashira Masa2an that in his view girls could marry as young as 9 or 10. Salafi members of parliament had tried to amend Egypt's child law to lower the marriage age from 18 to 16 or even 9. One of the frequently criticized forms of human trafficking in Egypt is that young girls from poor families have been trafficked to the Gulf for early marriage.

"It is particularly reprehensible that committee members should bow to pressure to exclude language criminalizing trafficking of women and children when this is not only a serious crime under international law but also under Egyptian law, and is clearly happening," Houry said.

Article 8 is discriminatory because it limits the construction of places of worship to adherents of Abrahamic religions, thereby excluding followers of non-Abrahamic religions, particularly Bahais, Human Rights Watch said.

One provision that is still being negotiated although not included in the current draft is article 9, which would amount to a serious threat to freedom of speech and religion, since it states that, "The divine being is protected and any criticism thereof is prohibited, as are the prophets of God and all of his messengers, the mothers of the faithful and the rightly guided caliphs."

Such a provision would in particular endanger the Egypt's Shia, Muslims who hold different interpretations than the majority Sunnis regarding the "rightly guided caliphs." On July 18, Makhyoun, the Nour member, told the daily Al Masry al -Youm that this provision would halt the spread of Shiism in Egypt and put an end to attempts to build Husseiniya, Shia houses of worship, in Egypt. The official religious institution al Azhar representative to the Assembly, Sheikh Abdel Tawab Abdel Hakim Qotb, was quoted as saying that Al Azhar would "resist the spread of Shiism, which harms God and his prophet."

Another source of controversy, and perhaps the most significant one in terms of the future of human rights in legislation in Egypt, is the proposal many Salafi members of the Assembly are currently pushing on establishing the religious institution Al Azhar as the sole body authorized to interpret Sharia, which article 2 sets out as the main source of legislation, and granting Al Azhar a vetting role to certify the consistency of all legislation with Sharia. If article 4 is included in the final draft it will effectively create a legislative vetting role for an unelected, unaccountable body with no recourse to judicial review.

Human Rights Watch also urged members of the Assembly to include a provision directly incorporating human rights as defined by international treaties ratified by Egypt into Egyptian law to strengthen the basis for amending many domestic laws that restrict rights. These treaties include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and the African Charter on Human and People's Rights. In January, Human Rights Watch published a report urging parliament to amend many repressive laws, saying that reforming these laws should be a legislative priority.

"The draft constitution contains many loopholes that would allow future authorities to repress and limit basic rights and freedoms," Houry said. "The Constituent Assembly should address those concerns before voting on the constitution."